Ferguson v Workers' Compensation Regulator
[2023] QIRC 259
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- Unreported Judgment
- Ferguson v Workers' Compensation Regulator[2023] QIRC 259
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Ferguson v Workers' Compensation Regulator[2023] QIRC 259
Ferguson v Workers' Compensation Regulator[2023] QIRC 259
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Ferguson v Workers' Compensation Regulator [2023] QIRC 259 |
PARTIES: | Ferguson, Kylee Ann (Appellant) v Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2022/169 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 6 September 2023 |
HEARING DATES: | 6 September 2023 |
MEMBER: | O'Connor VP |
HEARD AT: | Brisbane |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – APPEAL – WORKERS' COMPENSATION – INTERLOCUTORY APPLICATION – where an application has been brought to dismiss proceeding – where there exists a history of non‑compliance and failure to attend hearing – where just and expeditious disposition required – whether discretion enlivened to dismiss proceeding |
LEGISLATION: | Industrial Relations (Tribunals) Rules 2011 (Qld), r 5, r 6, r 45 |
CASES: | House v The King (1936) 55 CLR 499 Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209 Quinlan v Rothwell & Anor [2002] 1 Qd R 647 |
APPEARANCES: | No appearance by the Appellant. Ms C-L Godfrey for the Regulator. |
Reasons for Decision
- [1]The Workers' Compensation Regulator ('the Respondent in the substantive proceedings') filed an application on 24 August 2023 to strike out appeal WC/2022/169. The application was accompanied by an affidavit of Ms Cheryl-Lea Godfrey, Principal Appeals Officer setting out a chronology of the matter and attaching supporting documentation.
Background
- [2]The appeal was filed in the Industrial Registry on 13 October 2022. A Directions Order was issued by the Industrial Registry on 14 October 2022 requiring the parties to file relevant documentation. Ms Ferguson ('the Appellant') failed to comply with the Directions Order. No further correspondence has been received by the Industrial Registry since the Appellant's email of 8 January 2023 advising she was seeking legal representation.
- [3]On 14 July 2023 the matter was listed for call-over on 26 July 2023. Prior to the call‑over, the Respondent wrote to the Appellant on 24 July 2023 requesting advice whether she wished to proceed with her appeal, to which no response was received.[1]
- [4]At the call-over on 26 July 2023 the Appellant failed to appear. Mr Clark, who appeared for the Respondent, said as follows:
HIS HONOUR: Now, 2022/169, Kylie [sic] Ann Ferguson. Now, again, I understand she's in Cloncurry. She suggested, as I understand it, that she was seeking legal representation in January of this year but nothing subsequent to that.
MR CLARK: That's the information that the respondent also has, your Honour. In terms of directions, the respondent has provided the appellant with its list of documents. We haven't received anything from the appellant and no further communication since the matter was placed in abeyance. An email was sent to the appellant on the 24th of July.[2]
- [5]Mr Clark said as there had been no communication from the Appellant, he indicated the Respondent would proceed to file an application to strike the matter out.[3]
- [6]The application to strike out the appeal filed by the Respondent was listed for hearing at 10.00 am on Wednesday 6 September 2023. The Appellant failed to appear.
The Rules
- [7]Rule 5 of Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules') provides that the Rules apply to a proceeding before the Court, the Commission, a Magistrate or the Registrar.
- [8]Rule 6 of the Rules sets out the purpose of the rules as follows:
The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum of expense.
- [9]Clearly r 6 recognises the obligation placed, in this instance, on the Commission and implicitly on the parties to ensure the expeditious disposition of matters in the Commission.
- [10]Rule 45 of the Rules provides:
45 Failure to attend or to comply with directions order
- This rule applies if -
- a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and
- the party fails to attend the hearing or conference.
- This rule also applies if -
- a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
- the party fails to comply with the order.
- The court, commission or registrar may -
- dismiss the proceeding; or
- make a further directions order; or
- make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or
- make orders under paragraphs (b) and (c).
- [11]
Consideration
- [12]
There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.
- [13]Whilst Quinlan v Rothwell & Anor[7] related to the application of the Uniform Civil Procedure Rules 1999 (Qld) in respect of application to dismiss for want of prosecution, in my respectful view, the reasoning of Thomas JA has equal application to the current proceedings.
- [14]The discretion to dismiss this proceeding has, in my view, been enlivened. Accordingly, having regard to the history of unjustified non-compliance with the directions' order, the absence of any communication with the Appellant since 8 January 2023 and, in particular, her failure to attend the call-over on 26 July 2023 and the hearing on 6 September 2023 are all appropriate grounds to exercise the discretion to dismiss the proceeding.
- [15]Accordingly, I order that:
- Pursuant to rule 45(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld), appeal WC/2022/169 is dismissed.
- There be no order as to costs.